AZIZUR FAIZUR RAHMAN, MUMBAI V. JCIT RG 17(3), MUMBAI

ITA 2791/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1337 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 20-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CULLA MUMBAI PAN NO AESPRC
• Keywords: Unexplained cash credit; Additional evidence; Corroborative evidences
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 2791/MUM/2015 ASSESSMENT YEAR: 2009-10 MR. AZIZUR FAIZUR RAHMAN VS. JCIT RG 17(3) B-11/80 TENAMENT COMPOUND, MUMBAI HAINS ROAD, JACOB CIRCLE BYCULLA MUMBAI 400011 PAN NO. AESPR6467C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.P. MEHTA, AR REVENUE BY: SHRI PURUSHOTTAM KUMAR, DR DATE OF HEARING : 25/0 1/2017 DATE OF PRONOUNCEMENT: 11/04/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2009-10. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS) 32, MUMBAI AND ARISES OUT OF ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE GROUND OF APPEAL FILED BY THE ASSESSEE READS AS UNDER:- THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITIO N OF LOAN RECEIVED OF RS. 6,00,000/- TREATING IT AS UNEXPLAINED CREDIT U/ S 68 OF THE INCOME TAX ACT WITHOUT APPRECIATING THE FACT THAT THE IDENTITY OF THE LENDER AND GENUINENESS OF TRANSACTION MADE THROUGH BANKING CHA NNEL WAS ESTABLISHED. THE LENDER HAS GIVEN THE STATEMENT BEF ORE THE ASSESSING ITA NO. 2791/MUM/2015 2 OFFICER CONFIRMING TO HAVE GIVEN THE LOAN FROM HIS OWN BANK ACCOUNT AND OUT OF HIS OWN SOURCES AND PRODUCED ALL THE RELEVAN T DOCUMENTS. AS SUCH THE APPELLANT HAS DISCHARGED HIS PRIMARY ONUS TO PR OVE THE IDENTITY OF THE LENDER AND GENUINENESS OF THE LOAN. 3. IN A NUTSHELL THE FACTS ARE THAT DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) REQUESTED T HE ASSESSEE TO FILE LOAN CONFIRMATIONS OF THE PARTIES WHO HAD ADVANCED LOAN DURING THE YEAR UNDER CONSIDERATION. NO CONFIRMATION WAS FILED BY THE ASSESSEE IN RESPECT OF LOAN OF 6,00,000/- RECEIVED FROM MR. SHANTARAM DATTU. AS PER THE ASSESSEE MR. DATTU WAS A FARMER AND NOT ASSESSED TO TAX. THE AO ASKED THE ASSESSEE TO PRODUCE THE SAID PARTY ALONG WITH SUPPORTING EVIDENCE REGARDING SOURCE OF HIS INCOME. THE ASSESSEE FILED A COPY OF APPLICATION FILED BEFORE THE MANAGE R, SATARA SAHAKARI BANK REQUESTING FOR A BANK STATEMENT OF MR. DATTU. AS THE ASSESSEE FAILED TO FILE BEFORE THE AO THE ADDRESS OF THE PAR TY NOR COULD EXPLAIN THE SOURCE OF INVESTMENT SUPPORTED BY EVIDENCE, THE AO MADE AN ADDITION OF RS. 6,00,000/- U/S 68 OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE F ILED AN APPEAL BEFORE THE LEARNED CIT(A). THE AR OF THE ASSESSEE F ILED BEFORE THE LEARNED CIT(A) THE LOAN CONFIRMATION OF THE LENDER MR. SHANTARAM DATTU AND FILED THE SAME AS ADDITIONAL EVIDENCE UND ER RULE 46A OF THE INCOME TAX RULES, 1962. THE LEARNED CIT(A) REMANDED THE MATTER TO THE AO TO VERIFY THE ADDITIONAL EVIDENCE. DURING TH E REMAND PROCEEDINGS ON 25.02.2014, THE AO TOOK THE STATEMEN T OF MR. DATTU. AT POINT NO 7-9 OF THE STATEMENT, MR. DATTU CONFIRM ED THAT HE HAD GIVEN LOAN OF RS. 6,00,000/- TO THE ASSESSEE. HE RE CEIVED THE FUNDS FROM M/S. SUZLON LTD. WHO HAD ACQUIRED HIS ANCESTRA L AGRICULTURAL LAND FOR INSTALLATION OF A WINDMILL. HOWEVER, HE WA S NOT HAVING ANY PROOF OF RECEIVING THE FUNDS FROM M/S . SUZLON LTD. THE LEARNED ITA NO. 2791/MUM/2015 3 CIT(A) TOOK INTO ACCOUNT THE FINDING OF THE AO IN T HE REMAND REPORT THAT MR. DATTU WAS WORKING IN VASHI AND KHADK, MUMB AI AS A LABOURER AND EARNED RS. 9,000/- P.M. A PERUSAL OF T HE BANK STATEMENT SHOWS THAT APART FROM THE LOAN TRANSACTIONS, MR. DA TTUS BANK BALANCE RARELY CROSSED RS. 5,500/- AND THEREFORE, HE WAS NO T HAVING THE CAPACITY TO GIVE LOAN OF RS. 6,00,000/-. THE LEARNE D CIT(A) OBSERVED THAT MR. DATTU HAD RECEIVED MEAGRE INTEREST OF RS. 18,000/- IN CASH EVEN THOUGH THE LOAN WAS ADVANCED FOR MORE THAN ONE YEAR. THE LEARNED CIT(A) FURTHER OBSERVED FROM THE BANK STATE MENT OF THE LENDER MR. DATTU THAT THERE WERE TWO WITHDRAWALS OF RS. 3,00,000/- EACH ON 08.05.2008. THE ASSESSEE HAD NOT FURNISHED THE TRANSACTIONS PRIOR TO MAY, 2008 AND, THEREFORE, HE HAD NOT PROVE D THE SOURCE OF EARNING OF RS. 6,00,000/-. FOR THE SUBSEQUENT ONE YEAR UPTO APRIL, 2009, THERE WERE NORMAL TRANSACTIONS UNDERTAKEN IN THE SAID BANK ACCOUNT. NOT ON ONE OCCASION HAD ANY TRANSACTION BE ING IN EXCESS OF RS. 5,000/-. THERE WAS HARDLY ANY BALANCE IN THE AC COUNT. IN VIEW OF THE ABOVE, THE LEARNED CIT(A) UPHELD THE ADDITION O F RS. 6,00,000/- MADE BY THE AO U/S 68 OF THE ACT. 5. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE F ILES A PAPER BOOK (PB) CONTAINING (I) COPY OF CONFIRMATION AND PAN CA RD OF THE LENDER, (II) COPY OF BANK STATEMENT ISSUED BY SATARA SAHAKA RI BANK LTD. OF THE LENDER, (III) COPY OF ASSESSEES BANK ACCOUNT, (IV) COPY OF ASSESSEES LETTER DATED 12.02.2014 FILED BEFORE THE A.O. (V) C OPY OF REMAND REPORT DATED 03.11.2014 AND (VI) COPY OF RETURN OF INCOME FILED BY THE ASSESSEE WITH FINANCIAL STATEMENT FOR THE YEAR ENDE D 31.03.2014. 6. ON THE OTHER HAND, THE LEARNED DR RELIES ON THE ORDER OF THE LEARNED CIT(A). ITA NO. 2791/MUM/2015 4 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT A PERUSAL OF THE B ANK STATEMENT OF THE LENDER MR. DATTU (P-3 OF P/B) SHOWS THAT THERE WERE TWO WITHDRAWALS OF RS. 3,00,000/- EACH ON 08.05.2008. T HE ASSESSEE HAS NOT FURNISHED THE TRANSACTIONS PRIOR TO 04.04.2008. IN THE STATEMENT RECORDED BY THE AO (POINT NO 7-9 OF THE STATEMENT) MR. DATTU CONFIRMED THAT HE HAD GIVEN LOANS OF RS. 6,00,000/- TO THE ASSESSEE. MR. DATTU STATED BEFORE THE AO THAT HE RECEIVED THE FUNDS FROM M/S. SUZLON LTD. WHO HAD ACQUIRED HIS ANCESTRAL AGRICULT URAL LAND FOR INSTALLATION OF A WINDMILL. HOWEVER HE HAD NOT PROO F OF RECEIVING THE FUNDS FROM M/S. SUZLON LTD. MR. DATTU HAS STATED BE FORE THE AO THAT HE WAS WORKING IN VASHI AND KHADK, MUMBAI AS A LABO URER AND WAS EARNING RS. 9,000/- P.M. IT IS INCONCEIVABLE THAT W ITH SUCH MEAGRE INCOME MR. DATTU COULD GIVE A LOAN OF RS.6,00,000/- TO THE ASSESSEE. 8. AS THE HON'BLE SUPREME COURT LAID DOWN IN KALEKHAN MOHAMMED HANIF VS. CIT 50 ITR 1 (SC), THE ONUS IS ON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF CASH CREDITS, WHET HER THEY STAND IN THE ASSESSEES ACCOUNT OR IN THE ACCOUNT OF A THIRD PARTY. AT PARA 7 HERE-IN-ABOVE, WE HAVE DELINEATED THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION. 9. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/04/2017 SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBE R MUMBAI; DATED: 11/04/2017 BISWAJIT, SR. P.S. ITA NO. 2791/MUM/2015 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI